Indigo Group has expanded to incorporate IF Motivated, LLC – a partnership between Tom Foley and Michael Irvin aimed at launching businesses focused on Tom and Michael’s shared passion: education.

A successful business must be guided by its principles and passion, not profit. Do right, then do well.

Michael Irvin, three time Super Bowl champion wide receiver for the Dallas Cowboys and member of the NFL Football Hall of Fame, understands this and also recognizes that knowledge and continued learning are keys to success. And, the right team is needed to achieve your goals. With Michael joining Tom, the players are in position to identify strategic companies to join our portfolio, and offer IF Motivated the opportunity to introduce disruptive means to offer educational opportunities.

Tom is excited to have The Playmaker on the team, and begin to make the plays in the board room.

At an open meeting on October 23, 2013, SEC Chair Mary Jo White announced that the SEC has issued a proposed rule on crowdfunding. The rule would exempt qualifying crowdfunding transactions from registration and prospectus delivery requirements.

By way of background, crowdfunding is a method of raising capital through small investment amounts from a large number of investors, such as over the Internet or through social media. Companies and individuals are already using crowdfudning to raise money for products, projects or nonprofit ventures on platforms such as Kickstarter or Indiegogo. Today, backers typically get a thank you, free product or other gift for their support.

Some companies are also already using crowdfunding platforms to sell unregistered stock to accredited investors, but they cannot sell stock to unaccredited investors until the Jobs Act provision takes effect. With the issuance of the proposed rule, it is anticipated that startup companies will be able to start selling unregistered securities to unaccredited investors (i.e. “mom and pop”) by the middle of next year.

The proposed rule (link) includes a number of parameters aimed at facilitating capital formation while protecting investors, including:

Crowdfunding transactions must be done through broker/dealers registered with the SEC or a new intermediary called a funding portal that has to be registered by the SEC;

The maximum raised or invested through crowdfunding is $1 million in any 12-month period;

Issuers must file financial statements with the SEC and provide them to investors and intermediaries. The financial statements must cover the shorter of the: (1) issuer’s two most recent fiscal years or (2) length of time the issuer has been in existence; and

The proposal includes certain “bad actor” restrictions to bar certain issuers from taking advantage of the crowdfunding exemption.

It should be noted that specified disclosures must be provided to investors and potential investors, including information on the business, owners, use of proceeds raised, and certain related party information. For example, entrepreneurs seeking funding through equity crowdfunding also must disclose how they would use the money they raise, a description of the financial health of the company and depending on how much equity is sold in a 12-month period, a copy of the company’s tax returns.

The amount individuals could invest would be capped depending on their net worth.In any 12-month period, an individual could invest $2,000 or 5 percent of his or her annual income or net worth, whichever is greater, if both annual income and net worth are less than $100,000. Meanwhile, for those investors whose annual income or net worth are more than $100,000, an individual could opt to invest as much as 10 percent of their annual income or net worth, whichever is greater. Investors could buy no more than $100,000 worth of securities in companies through crowdfunding in any 12-month period. If an investor purchases securities in a company via crowdfunding, he or she would not be permitted to sell that equity for one year.

And, it appears that under the proposed rules, investors who come in through crowdfunding platforms will not count toward the 2,000-investor limit private companies can have before they must register with the SEC.

The SEC will accept public comments on the proposed rules for 90 days. After that, SEC staff will digest the comments before submitting a final rule to the SEC’s commissioners for a vote. The final rule would take effect 60 days after publication in the federal register.

The materials contained herein are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. The newsletters and articles on our website are offered only for general informational and educational purposes. They are not offered as and do not constitute legal advice or legal opinions. You should not act or rely on any information contained herein without first seeking the advice of an attorney.

What’s In a Name?

What to consider before naming your business after a family name

Maayan Perel, Esq.

So, you have finally reached the exciting point of choosing a name for your business. Congratulations! In this hectic sage of endless concerns, which includes honing your business ideas, researching your potential market, building your marketing strategy and raising the capital necessary to turn your ideas into reality, naming your business appears to be a rather fun and light-hearted step. However, before you go and pick your own first or last name as your business’s name – either because this seems to be the easiest and most natural choice, or because you hope to build a legacy and be remembered through your business – you should consider certain intellectual property issues that are implicated in naming your business after yourself.

As a general matter, whatever name you end up adopting for your business, you want to be able to protect it as a trademark. In order for a name to be protected as a trademark, the name must be able to indicate the source of the product/service bearing such name, or in other words it must be “distinctive.” Indeed, distinctiveness is one of the three things the United States Patent and Trademark Office (the “PTO”) will evaluate about your mark to determine its suitability for registration (the others are Likelihood of Confusion and whether the mark is scandalous or immoral). Why? Because the PTO does not want to grant exclusive rights in a mark that others should have the ability to use freely.

When assessing whether your choice of a name for your business should be found sufficiently distinctive to be protected as a trademark, consider the following four categories of potential trademarks, from least easily protectable to easiest to protect: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful:

A Generic mark is basically a common noun that actually refers to the product/service category, e.g., SUNGLASSES TRADING for a business retailing sunglasses. No one can claim intellectual property rights and exclude others from using a generic mark, and there is no way for a generic mark to acquire distinctiveness.

A Descriptive mark is an improvement over a generic mark, as it affords some additional information. If a descriptive mark merely adds information that would apply to other examples of the product/service, e.g., AFFORDABLE SUNGLASSES TRADING for a business retailing sunglasses, it will be considered “merely descriptive” and will be found ineligible for trademark registration. For a merely descriptive mark to be entitled to trademark protection, it must be shown to have acquired “secondary meaning.” That is, the user of the mark has to show that consumers, over time, have come to associate the merely descriptive mark with that user’s particular brand as the source of goods/service. Usually, it takes about five years of substantial, exclusive, and continuous use for a merely descriptive mark to acquire sufficient distinctiveness to warrant registration.

A Suggestive mark alludes to some aspect or characteristic of the product/service, but in a distinctive way, e.g., SUNNYBEACH TRADING for a business retailing sunglasses. This mark suggests that the business sells beach accessories in a way that goes beyond merely describing the business as trading sunglasses. A mark held to be suggestive is considered sufficiently distinctive to merit immediate protection; no showing of acquired distinctiveness is necessary.

Finally, a Fanciful or Arbitrary mark is the most distinctive, and therefore gets the most robust trademark protection. A Fanciful mark is a made-up word, e.g., NIKE for sportswear. An Arbitrary mark is an existing word that has no relationship to the product/service it is used to designate, e.g., APPLE for computers and electronic gadgets. Fanciful or Arbitrary marks receive protection from the moment they are adopted (so long the user is the first to use the mark).

The use of surnames as source indicators is Descriptive. Accordingly, it is not subject to immediate trademark protection. The rational behind this principle is that “surnames are shared by more than one individual, each of whom may have an interest in using his surname in business.” Generally, to be able to register your surname as a trademark, your customers must recognize your surname as principally identifying your business and not as primarily referring to yourself or any other person with that surname. Establishing such recognition may take quite a long time; indeed you will probably be required to show about five years of substantial, exclusive, and continuous use to turn your surname into a registrable mark.

Nevertheless, there maybe instances where registration of a surname will be allowed, even without a showing of long and exclusive use. Section 2(e)(4) of the Lanham Act (the law governing the registration of trademarks) allows registration of all terms otherwise registrable under the Lanham Act, but excludes terms that are “primarily merely a surname.” The language “primarily merely a surname” intends to avoid instances where your choice of name for your business will be held unregistrable just because it happens to be the surname of an individual in a telephone book or city directory.

Basically, there are five relevant factors that can assist you in determining whether your name is primarily merely a surname, and thus, unregistrable:

Whether the surname is rare;

Whether it is the surname of anyone connected with you or your partner/s;

Whether it has any recognized meaning other than as a surname;

Whether it has the “look and feel” of a surname; and

Whether the stylization of lettering is distinctive enough to create a separate commercial impression.

These factors should be examined, though, according to the name’s primary significance to the consumers.

So, let’s try to wrap up this discussion and develop some practical tips:You are better off choosing a Fanciful, Arbitrary or Suggestive name for your business. In this way you can ensure your business’s name will receive immediate trademark protection; your competitors will therefore be excluded from using this name or any other name that resembles it in such a way that would potentially confuse consumers.

You should not adopt your own name as your business’s name if you have a very common name, e.g. SMITH. Such a name will be found, for the most part, as merely a surname and would be refused registration as a trademark. Having a common surname and still anxious to be remembered forever through your business? You can either: (1) use your name in a substantial and continuous manner to be able to show the USPTO that it has acquired a secondary meaning as your business’s designator; or (2) just donate a bench in the park under your name – this is definitely a less bothersome strategy for leaving something memorable behind you…

You can adopt your surname as your business’s name if it is rare, e.g. BAIK; if it is has a different recognized meaning, e.g. PEARL; if it does not have the “look and feel” of a surname (so consumers are likely to believe it is a coined term), e.g. GARAN; and, if you style its lettering in a distinctive way.

Before making your final decision, be sure no one else has adopted your name for his or her similar business before you (e.g., if your surname is McDonald and you opened a fast food business, DO NOT adopt it as your business’s name). For this matter, you can conduct an independent trademark search on the USPTO’s user-friendly online database.

Finally, whatever name you eventually chose for your business, be sure to put your efforts into registering it with the USPTO to obtain trademark protection. The last thing you want is to watch your competitor choosing a similar name for his or her business and free riding on your reputation, without having a legal remedy.

The materials on this website are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver. The newsletters and articles on this website are offered only for general informational and educational purposes. They are not offered as and do not constitute legal advice or legal opinions. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.

Company Widens Its Reach on National Level and Expands Services to Include the Hospitality Industry

DALLAS, TX and NEW YORK, NY, Mar 25, 2013 (MARKETWIRE via COMTEX) — Indigo Group LLC is expanding its national operations to include Dallas offices, in addition to its New York, NY and River Edge, NJ locations.

Indigo Group, a business development and investment banking firm, also announced an added focus on the quick service and fast casual restaurant industries as part of its hospitality group. The consulting arm of Indigo Group provides companies operational advice and assistance with human resources, legal concerns and risk management.

“Dallas is well known for their development of new food services concepts,” said Tom Foley, Managing Director. “In addition to this area, expanding our operations in Dallas-Ft. Worth brings us more opportunity to service existing clients and offers us the potential to collaborate with new companies in the hospitality arena.”

Along with Columbus, Ohio, Dallas is widely viewed as the premier test market for food and food services due to its vast suburban population. In addition, a Kiplinger Report in January 2013 named Dallas as one of the 10 great U.S. cities for starting a business, based in high concentrations of small businesses, educated workforce, start-up investment dollars and low business costs.

About Indigo Group

Indigo Group is a business advisory firm, delivering strategic business advice to its clients and portfolio companies. Indigo Group’s clients and portfolio companies include start-up ventures, new and established hospitality chains and mature companies. Indigo Group’s business advisory services incorporate a comprehensive legal understanding of key business decisions, allowing clients to properly balance strategic vision, execution and risk considerations. Indigo Group offers business advisory, investment banking services, corporate risk management and through its affiliated law firm, provides legal services in business and commercial legal matters, venture capital, private equity and regulatory compliance. For more information about Indigo Group, visit www.indigogroupllc.com.